February was a busy policy month here at the Boston Bar Association (BBA), as we submitted five sets of comments on proposed new rules and proposed amendments to rules. We’ve often highlighted the hard work of our Sections in submitting these comments. This process allows members to leverage their specific expertise and offer constructive feedback on items that will influence their own practice of law. The courts have long shown an interest in taking a close look at these comments, and the insights offered by the Sections are often reflected in the final iterations of the rules. In fact, keep reading to the end for an example of BBA Section concerns that were just addressed in a recently promulgated rule!
Last month’s BBA Section comment submissions included:
Board of Bar Overseers Proposed Rule Changes
The Board of Bar Overseers (BBO) solicited comments related to amendments to Rule 3.18 and related rules on the conduct of adjudicatory proceedings. The proposed changes were an effort to clarify the allocation of authority between hearing officers and Board members in ruling on certain motions. The amendments generally provide that when a hearing officer is appointed to a matter, they will have authority to decide most motions, but some motions will now be reserved exclusively for Board members, including motions by a respondent to dismiss charges, motions for a protective order, and motions on discovery.
The Ethics Committee and the Business and Commercial Litigation Section Steering Committee drafted the comments to the BBO, unanimously agreeing that the proposed rule changes were “welcome and necessary.” Paul Lannon, Partner at Holland & Knight and Chair of the Ethics Committee, noted that “[t]he BBO provides a vitally important service to the Massachusetts bar and the general public” and “[t]he proposed rule changes should significantly improve that service, especially with respect to motions for protective orders and discovery.” The Ethics Committee and Business and Commercial Litigation Section Steering Committee agreed that because hearing officers have less experience than Board members, certain motions, like those on protective orders and discovery, should be decided only by Board members. Hearing officers may hear only one or two matters in their tenure, so leaving motions that serve important public functions and have significant impacts to more experienced Board members is best.
Proposed Amendments to Superior Court Standing Orders and Rules
The Superior Court invited comments on a range of proposed amendments to Superior Court Standing Orders and Rules, including the addition of a new section calling for a “Final Trial Conference Before Jury Trial” to Standing Order 1-88. In that conference, parties would discuss matters in the new Rule 6.2(a) that relate to a range of empanelment issues like the statement of the case to be read to the venire and the process and content of the judge’s intended voir dire.
The Business and Commercial Litigation Section Steering Committee provided comments on the proposed Amendments to Standing Order 1-88, expressing that members of the Section were generally supportive of the proposed changes. Paula Bagger, of Cooke Clancy & Gruenthal LLP and a member of the Steering Committee, who was kind enough to present the comments to the BBA Council for their approval, noted the Steering Committee members “unanimously agreed that the formal addition of a ‘final trial conference’ in the Superior Court conforms the rules to an existing ‘best practice,’ which helps civil trials get started promptly and efficiently.”
Given the new Superior Court Rule 6, members expected the final trial conference would allow for much of the foundation of voir dire to be set in the conference, and some members noted that many Superior Court judges already regularize many of the issues that would be addressed in this new process, but it will likely benefit litigants to have this process formalized in a final trial conference. The comments also addressed a potential ambiguity in the proposed requirement that parties submit a “final joint witness list,” and suggested that there could be a clarification that this does not authorize unilateral additions to a party’s witness list.
Proposed Amendments to Rule 26 of the Mass. Rules of Civil Procedure
The Standing Advisory Committee on the Rules of Civil and Appellate Procedure solicited comments on amendments to Mass. R. Civ. P. 26(b)(5), which would make the Massachusetts rule on privilege logs the same as the federal rule. The current Massachusetts rule requires a log that presents certain information when a party does not provide, on the basis of privilege, otherwise discoverable information. Unlike the current Mass. Rule, the federal rule does not require a document-by-document log, though parties are still required to describe the nature of the material withheld in a manner that would provide the other party an ability to assess the merits of the reason for withholding the requested material.
The Business and Commercial Litigation Section Steering Committee also offered comments on these amendments to Rule 26. Paula Bagger noted that “whether the rules should mandate the preparation of privilege logs turned out to be an issue close to the hearts of our Steering Committee of business litigators and generated active discussion. Our comments reflected both the views of the majority, which favored the proposed rule, and those who believed the present rule better reflects practice in our state courts.”
Some members, for example, welcomed the change in the rule, noting that the current rule on privilege logs is often time-consuming, expensive, and even potentially creates a means for a party with fewer privileged documents to aggressively insist the party with more documents follow the rule completely or risk waiver. Others, however, felt the current rule, even if burdensome, offers more safeguards as it makes it more difficult to “slip something past” opposing counsel than would be the case with more generalized descriptions. They also acknowledged the benefits of harmonizing state and federal law but warned that certain key differences in practice, like the availability of early judicial intervention in federal courts, make the new rule less suitable to Massachusetts. Finally, other members noted the new rule could be improved by requiring accompanying information to be provided with the categorical description and clarifying that a judge can order production of a privilege log when a particular case or circumstance would benefit from it.
Proposed Amendments to the Mass. Rules of Civil Procedure Regarding Credit Card Debts
The Standing Advisory Committee on the Rules of Civil and Appellate Procedure also invited comments on two new proposed rules related to actions for money damages against individuals arising from credit card debt. The proposed amendments were specifically meant to respond to abuses in these types of debt collection cases and difficulties that arise when the identity of the original creditor is not clear from the face of the complaint. Proposed Rule 8.1 would require plaintiffs in credit card debt collection cases to file additional documents along with their complaint, including affidavits with specific information about the debt, address verification, and certification that the statute of limitations has not passed. Proposed Rule 55.1 provides that defaults and default judgments are not allowed without the required affidavits and certifications and also requires any request for default judgment served by mail to be sent to same address verified under Rule 8.1.
The Bankruptcy Law Section offered comments on the proposed rules, expressing general support for the provisions and noting that the rules would help to address common abuses within credit card debt collection cases. The comments also raised one concern about the requirement that an affiant attest under oath that action is not barred by the statute of limitations, proposing that instead, perhaps the affiant could be required to attest the he or she believes after reasonable investigation that his or her client has a good faith basis for asserting the action is not barred by the statute of limitations.
Proposed Rules Governing Bail Magistrates and Bail Commissioners
The Trial Court Bail Committee invited comments on proposed Trial Court Rules Governing Bail Magistrates and Bail Commissioners, intended to replace the 2014 Superior Court Rules Governing Persons Authorized to Admit to Bail Out of Court. The new rules would apply to all Clerks of Court, Clerk-Magistrates and Assistant Clerk-Magistrates who participate in the overnight bail process and Bail Commissioners, and remain similar in many aspects to the 2014 rules. The changes in Proposed Rule 14, however, were taken up by the Criminal Law Section Steering Committee.
The Steering Committee comments noted that, overall, members of the Section believed the Proposed Rules represent a commendable effort to improve the process and quality of out-of-court bail determinations. However, some members expressed a concern over the lack of clarity as to whether the standards found in Proposed Rule 14 were fully consistent with applicable substantive law. The comments pointed out the specific provisions of the rule which may conflict with provided statutory and case law, suggesting that the Trial Court Bail Committee ensure these particular points were consistent with the relevant statutes and cases. Eric Haskell, of the Massachusetts Attorney General’s Office and the member of the Steering Committee tasked with drafting the comments, was pleased the Committee was “able to identify several specific areas where we believed the Proposed Rules could benefit from provisions” and “add value to these proposed rules.”
While we were busy preparing and submitting the comments above, the BBA also got word of a final order that reflected the concerns of past comments submitted by a BBA Section:
Parenting Coordination Standing Order
On February 1, 2017, the Probate and Family Court promulgated the final Parenting Coordination Standing Order 1-17, related to the procedures and requirements for parenting coordinators either assigned by agreement between parties or appointed by the Court.
Last year, the Family Law Section Steering Committee provided comments raising a number of concerns, including the uncertainty surrounding what happens when the parties disagree with a parenting coordinator, whether or not the Court has the power to grant the parenting coordinator binding decision-making authority without agreement of the parties, and what payment procedures apply if the Court appoints a parenting coordinator but both parties refuse to pay.
Many of the concerns expressed in the comments were ultimately addressed in the final version of the Order. The Court clarified that parties always had a right to access the Court, even when they had submitted to the binding decision-making authority of the parenting coordinator. Additionally, the Order now provides that the binding decision-making authority of the parenting coordinator could apply only upon agreement of the parties and that a parenting coordinator could not be appointed by the Court if both parties refused to pay.
We look forward to being part of many more opportunities to comment this year (right now we’re gathering input on post-verdict juror contact and file retention) and will keep you up to date on the important insights and hard work coming out of our Sections.
Legislative and Public Policy Manager
Boston Bar Association